EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of August 1, 1998, by and among Packaged Ice, Inc., a Texas corporation (the
"Company"), and Xxxxx X.
Xxxxxx (the "Employee").
PRELIMINARY STATEMENTS
The Company desires to employ Employee as Chief Executive Officer; and
The Employee desires to be so employed by the Company upon the terms and
conditions herein below set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual premises herein set forth,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto mutually agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
agrees to such employment on the terms and conditions hereinafter set forth.
2. DUTIES AND RESPONSIBILITIES OF EMPLOYEE. Employee shall serve as Chief
Executive Officer. Employee shall devote substantially all of his business time
to the performance of his duties hereunder unless otherwise authorized by the
Board of Directors.
3. TERM. The initial term of this Agreement commences effective August 1,
1998 and shall continue until July 31, 2000, and shall automatically renew for
consecutive two year periods at the expiration of each two year term.
4. COMPENSATION OF EMPLOYEE.
4.1 BASE SALARY. Commencing upon the date hereof, the Company shall
pay to Employee a base salary at the rate of $225,000 per annum. Such
compensation shall be paid to Employee in accordance with the Company's payroll
policies. The Compensation Committee of the Board of Directors will review base
salary no less often than annually and implement such raises in base salary as
are reasonable, after consultation with Company's outside compensation
consultant.
4.2 EXPENSES. In addition to those expenses that may be expressly
set forth herein, the Company shall, in accordance with the established policies
and procedures of the Company, pay or reimburse Employee for all ordinary and
necessary
out-of-pocket expenses which are documented and are reasonably incurred by
Employee in connection with performing his duties hereunder.
4.3 BENEFITS. Employee shall be entitled to such benefits
commensurate with his position as Chief Executive Officer under plans
established by the Company and to the extent that Employee is eligible to
participate in such plans, including without limitation, the Company's incentive
compensation plan, stock option plan, health and welfare plans, etc.
4.4 AUTOMOBILE. With respect to Employee's use of an automobile in
connection with the performance of his duties hereunder, the Company shall, at
the discretion of the Employee, either reimburse the Employee for or directly
pay the reasonable costs of, the use of an automobile during the term of this
Agreement and all usual expenditures in connection therewith, such as fuel,
insurance, tolls, parking, maintenance and repairs, etc. in accordance with the
past practices of the Company.
5. TERMINATION.
5.1 TERMINATION. Either party shall have the right to terminate this
Employment Agreement upon thirty (30) days written notice to the other party.
5.2 SEVERANCE PAY. Except for the termination of Employee "For
Cause," or as a result of Employee's death or disability, in the event that the
Company elects to terminate Employee during the term hereof, Employee's
exclusive termination remuneration shall be continuation of Employee's base
salary and health and welfare benefits for a period of twenty four (24) months
from the date of termination.
5.3 "FOR CAUSE". As used herein, the term "For Cause" shall mean (i)
Employee's theft, fraud or other defalcation, (ii) Employee's conviction of a
felony, or any crime of moral turpitude, (iii) Employee's violation of any
covenant herein contained after ten (10) days notice and opportunity to cure,
(iv) Employee's failure to comply with all reasonable policies, standards and
regulations of the Company, as determined by the Board of Directors, after ten
(10) days notice and opportunity to cure, or (v) Employee's willful or grossly
negligent misconduct which is injurious to the Company, its business and
affairs. If the Company elects to terminate Employee "For Cause," or upon
Employee's death or disability, then this Agreement shall terminate and there
shall be no severance pay owed by the Company to Employee.
6. DISCLOSURE OF CONFIDENTIAL INFORMATION, COVENANT NOT TO COMPETE.
Employee acknowledges that certain information whether written or oral,
concerning the Company, including but not limited to general business
operations, or any other ideas and similar items relating to the business of the
Company (referred to herein as "Confidential Information") whether prepared or
generated by Employee or the Company pursuant to this Agreement or otherwise
coming into the possession or knowledge of Employee shall
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remain the exclusive, confidential property of the Company except to the extent
expressly authorized in writing by the Company for dissemination. Employee
further acknowledges and agrees that all such Confidential Information
constitutes trade secrets of the Company.
During the term of this Agreement and the Restricted Period (hereinafter
defined), Employee shall not disclose any of such Confidential Information to
any third party without the prior written consent of the Company and shall take
all reasonable steps and actions necessary to maintain the confidentiality of
such Confidential Information. Employee shall not use any of such Confidential
Information in any manner whatsoever during the Restricted Period, without the
Company's express prior written consent. In consideration of the obligations
undertaken by the Company herein, Employee will not, at any time, during or
after his employment hereunder, reveal, divulge or make known to any person, any
Confidential Information acquired by Employee during the course of his
employment.
During the term of this Agreement and the Restricted Period, Employee
shall not within 200 miles of any ice manufacturing facility owned or operated
by the Company or any of its subsidiaries be employed by (as an officer,
director, employee, consultant or independent contractor) engage in, or have any
interest in any person, firm, corporation or business (whether as a shareholder,
creditor, partner, consultant, holder of any beneficial interest or otherwise
other than as a beneficial holder of not more than 1% percent of the outstanding
voting stock of a company having at least 500 holders of voting stock) that is a
manufacturer or wholesale distributor of ice.
During the Restricted Period, Employee shall not solicit or attempt to
solicit any employee of the Company in attempt to encourage the employee to
leave the employ of the Company.
The provisions of this SECTION 6 shall survive the expiration or
termination of Employee's employment hereunder and until the end of the
Restricted Period. The term "Restricted Period," as used in this Section shall
mean the period commencing on the date hereof and ending three (3) years after
the date Employee's employment is terminated for any reason. The provisions of
this Section shall survive the expiration or termination of Employee's
employment hereunder and until the end of the Restricted Period as provided
herein. The Employee acknowledges and agrees that the restrictions imposed
herein are reasonable as to scope, duration and area, are necessary for the
protection of the Company's and its affiliates' business, and that but for the
Employee's agreement to the restrictions herein imposed the Company would not
have entered into this Agreement.
7. MISCELLANEOUS.
7.1. ASSIGNMENT. Neither Employee nor the Company may assign or
delegate any of their rights or duties under this Agreement without the express
written
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consent of the other. Provided that in the event that the Company elects to sell
all or substantially all of its assets, then the Company shall have the right to
assign this Agreement to the buyer thereof, on the condition that the buyer
expressly assumes all of the obligations of the Company under this Agreement,
and the failure of the buyer to do so will result in a constructive termination
of this Agreement. In the event of a merger or other business combination
resulting in a change of control of the Company, the acquirer will be required
to expressly assume all of the obligations of the Company under this Agreement,
and the failure of the acquirer to do so will result in a constructive
termination of this Agreement.
7.2 INJUNCTIVE RELIEF. Employee acknowledges that the services to be
rendered under the provisions of this Agreement are of a special, unique and
extraordinary character and that it would be difficult or impossible to replace
such services. Accordingly, Employee agrees that any breach or threatened breach
by him/her of SECTION 6 of this Agreement may cause irreparable harm to the
Company for which monetary damages may not be adequate and accordingly, any such
breach or threatened breach of SECTION 6 of this Agreement shall entitle
Company, in addition to all other legal remedies available to it at law or in
equity, to seek a temporary or permanent injunction to enjoin such breach or
threatened breach.
7.3 BINDING EFFECT. This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the parties hereto and their permitted,
respective successor, heirs, beneficiaries and permitted assigns.
7.4 HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.5 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered, sent by registered or
certified mail, return receipt requested, postage prepaid, by facsimile with
facsimile generated confirmation of receipt, or by private overnight mail
service (e.g. Federal Express) to the party at the address set forth as follows:
If to the Company, to: Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Board of Directors
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxx
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If to Employee, to: Xxxxx X. Xxxxxx
11407 Xxxxxxxx
Xxxxxxx Xxxxx 00000
or to such other address as either party or the Company may hereafter give
notice of in accordance with the provisions hereof. Notices shall be deemed
given on the sooner of the date actually received or the third business day
after sending.
7.6 WAIVER. The waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a continuing waiver of
any subsequent breach by either party. No waiver by either party of any
provision or condition to be performed shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time. No waiver by either party of any provisions or condition to be performed
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or any prior or subsequent time.
7.7 GOVERNING LAW. Regardless of the place of execution or
performance, this Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without giving effect to such State's
conflicts of laws provisions.
7.8 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator to be located in Houston, Xxxxxx County,
Texas, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof, and shall not be appealable.
7.9 SEVERABILITY. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect.
7.10 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more original or facsimile counterparts, each of which shall be deemed an
original, but all of which together shall constitute one of the same instrument.
[STUART EMPLOYMENT AGREEMENT
SIGNATURE PAGE FOLLOWS]
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[STUART EMPLOYMENT AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
EMPLOYEE:
_____________________________________
Xxxxx X. Xxxxxx
PACKAGED ICE, INC.
By:__________________________________
X.X. Xxxxx III, President
